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New Regulations Heighten Risk of English-Only Policies for Employers

As the workforce has become more diverse over time, some employers have considered adopting policies that require employees to speak only English at work. Organizations adopting such policies often believe that so-called “English only” rules enhance communication among employees and prohibit behavior that is rude or inconsiderate to employees who speak only English. The law permits implementation of English-only policies only in very limited circumstances, however, and employers may expose themselves to liability if they adopt such a policy without careful consideration.

Both state and federal law regulate an employer’s ability to adopt policies limiting the use of a language in the workplace. California’s Government Code Section 12951 prohibits employers from limiting or prohibiting the use of any language in the workplace unless:

the restriction is justified by a business necessity, and

the employer has notified employees of both the circumstances when the language restriction is required to be observed, and of the consequences for violating the language restriction.

The law defines the term “business necessity” quite narrowly as “an overriding legitimate business purpose such that the language restriction is necessary to the safe and efficient operation of the business, that the language restriction effectively fulfills the business purpose it is supposed to serve, and there is no alternative practice that would accomplish the business purpose equally well with a lesser discriminatory impact.” The federal Equal Employment Opportunity Commission also scrutinizes English-only policies closely to determine if they are justified by “business necessity.”

On July 1, 2018, California’s Fair Employment and Housing Council adopted new regulations that provide English-only rules are presumptively unlawful. Employers can overcome the presumption of illegality only by proving that the rule is justified by a business necessity. Rules requiring English during non-work time such as meal periods and rest breaks are always unlawful pursuant to the new regulations.

Under the applicable law, an English-only policy is not justified merely because monolingual English-speaking employees regard others as rude when they speak in languages other than English at work, or because English speakers might want to understand all the conversations that occur in the workplace, or even because a company’s customers may prefer for communication to be conducted only in English.

In the past, employers often attempted to justify English-only policies by arguing that clear communication was required among a group of employees and one or more of the employees in question spoke only English. Under the new regulations, a general desire to facilitate effective communication is unlikely to constitute a business necessity justifying an English-only policy at all times during work hours. Employers clearly should not apply English-only policies to employees whose jobs do not logically require that they speak English. Moreover, the new regulations prohibit practices that negatively impact employees based on national origin, and the regulations specifically identify decisions based on an applicant or employee’s proficiency in reading or writing English as such a practice. Any policies mandating the use of English must be narrowly tailored to achieve their essential business purpose.

Employers who adopt English-only policies expose themselves to a risk of claims for discrimination. Since the circumstances in which an English-only policy might be justified are quite narrow, employers should not adopt such a policy before conferring with counsel, and any such policies should be carefully drafted and narrowly tailored. If you have questions regarding English-only rules or any other issue related to employment law, please contact one of our attorneys: